From a strictly legal point of view, the common privilege of the defence is a kind of false name, because it is not a positive privilege. Instead, it is generally considered an exception to the exemption rule. In most contexts, disclosing privileged and confidential information to third parties is a waiver of privilege. However, parties to a common defence agreement can generally retain their privilege, even when they exchange confidential information with each other. No good discussion about the JDAs begins without first discussing the doctrine of the common interest; A concept that breathes life into all JDAs. The teaching of the common interest (sometimes called the common privilege of the defence) is an extension of solicitor-client privilege. It allows parties who have a common interest in defeating a mutual legal opponent to freely share information without worrying about waiving solicitor-client privilege regarding their disclosure. And in the context of the discussion back in Oregon, it is interesting to note that a court that would have obtained the Oregon law on Krug`s actual circumstances would probably have had the same conclusion as the Krug court. As mentioned above, OEC 503 does not extend solicitor-client privilege to communication between the co-accused themselves. For communication to be protected below the rule, it must be: what is a common defence agreement in the criminal context and why is it important? In short, the JDA is an important punitive defence strategy and a valuable tool in preparing for your potential defence.
Therefore, the decision to enter into the agreement must be carefully considered by you and your lawyer. In addition, the contours of the JDA should be strictly respected, as even minor slippages can trigger a waiver of privileges that can affect multiple parties. In litigation, co-accused often have a common interest in defeating the complainant`s claims. Especially in situations where co-accused do not attempt to blame the blame, the courts have recognized that the accused can defend themselves together and share trust and secrets (as well as expenses). In this context, even if the communication between the defendants is probably not protected in the event of further litigation between them, the communications could be protected by the applicant from discovery if the defendants defend themselves together. Some jurisdictions distinguish between the common privilege of the defence and the privilege of the common interest – and define it precisely. Note that some jurisdictions distinguish between the common privilege of the defence and the prerogative of the common interest – and define precisely. Some courts have found that the former is a narrow privilege, most often arising from actual litigation, while the privilege of the common interest is generally considered broader and does not require litigation. In order to increase the complexity of this issue, some courts use the terms almost interchangeably, with no reasonable distinction between the two. There are no rules requiring JDA parties to commemorate their agreement in writing; in fact, many JDAs are orally.
However, participants who insist on oral agreements should welcome the risk involved. That is, the court may decide on a CCM, no. In federal courts, the Federal Rules of Evidence (FRE) requires the application of common law lawyers and privileges of common interest in federal criminal matters. See FRE 501. Thus, in the Ninth Circuit, the teaching of the common interest applies when (1) the communication is made by separate parties in the context of a matter of common interest; 2. Communication must intensify these efforts; and (3) the privilege is not waived. See Hunydee v. United States, 355 F2d 183, 185 (9. Cir 1965). For this reason, many lawyers dealing with this issue will attempt to identify the generally accepted distinctions between the two privileges and then try to put in place applicable safeguards.